Court directs full hearing in royalty collection case against MCSK

This marks the second setback for MCSK after Milimani High Court Judge Justice Linus Kassan declined to grant orders staying the Tribunal’s decision. Instead, the court ordered that the matter proceed to a full hearing.

MCSK, through its lawyer Duncan O’kubasu, had moved to the High Court under a certificate of urgency on December 10, 2025, seeking to stay the Tribunal’s ruling that prohibited it from collecting and distributing royalties. 

The society also sought to suspend a decision by the Kenya Copyright Board (KECOBO) dated October 14, 2025, which declined to issue it with an operating licence pending the hearing and determination of the appeal.

In addition, MCSK sought injunctive orders restraining KECOBO and the Performing and Audio-Visual Rights Society of Kenya (PAVRISK), whether by themselves, their agents, servants or employees, from interfering with its operations relating to the collection and distribution of royalties and the administration of copyright on behalf of its members.

MCSK argued that the Tribunal erred in law by finding that it failed to meet the requirements for registration under the Copyright Act. 

In its filings, the society stated that the Tribunal misinterpreted and misapplied the Copyright (Collective Management) Regulations, 2020, by imposing what it termed a rigid threshold of compliance and failing to properly assess whether the alleged deficiencies were sufficient grounds to deny registration.

In its judgment dated 25th November 2025, the Copyright Tribunal discharged earlier interim orders that had temporarily allowed MCSK to collect royalties. The Tribunal held that the absence of a valid operating licence deprived MCSK of lawful authority to collect royalties or issue unified licences to users of music and audio-visual works.

The dispute arises from a Notice and Memorandum of Appeal filed by MCSK on October 16, 2025, challenging KECOBO’s decision to reject its application for renewal of a Collection Management Organisation (CMO) licence for the 2025–2026 period.

In its ruling, the Tribunal cited recent High Court decisions by Justice Chacha Mwita and Justice John Chigiti on collective management and tariff regulation in the music industry. Relying on those decisions and Section 46A of the Copyright Act, the Tribunal discharged the interim injunction that had restrained KECOBO from interfering with MCSK’s royalty collection and distribution activities.

The Tribunal further revised timelines in the matter, directing KECOBO and the interested parties to file their responses to MCSK’s appeal within the statutory period, citing the urgency and public significance of the case under Section 21(3) of the Copyright Act.

In response, KECOBO, through lawyer Alex Nyabwengi, maintained that MCSK had been operating as a CMO without a licence after its application for renewal was rejected. The regulator argued that under Section 2 of the Copyright Act, Cap 130, only duly licensed CMOs approved by the board are permitted to collect and distribute royalties.

“The appellant is neither approved nor authorised as prescribed under the law to carry out the functions of a CMO, and the impugned orders seek to permit illegality,” KECOBO stated.

On October 14, 2025, KECOBO issued operating licences to PAVRISK and KAMP Copyright and Related Rights to manage royalties for a one-year period effective 5th November 2025. MCSK, Film Makers Rights Achievers of Kenya (FRAK), and Collective Management Services (CMS) were among the applicants whose bids were unsuccessful. In the appeal, PAVRISK and KAMP are listed as interested parties.

MCSK is also facing internal leadership wrangles, with two rival factions claiming control of the society. One faction is led by chairman Ephantus Wahome Kamau with Ezekiel Mutua as Chief Executive Officer, while the other is headed by Lazarus Muli with Richard Sereti as acting CEO.

KECOBO further cited Section 46A of the Copyright Act, which prohibits the collection of royalties based on tariffs that have not been approved and gazetted by the Cabinet Secretary responsible for copyright matters. The regulator pointed to a July ruling by Justice Mwita in HCCHRPET/E076/2024, which nullified operative tariffs published under Legal Notice No. 84 of 2023 for lack of meaningful public participation.

“Effectively, there are no tariffs upon which even approved and licensed CMOs can collect copyright royalties,” KECOBO stated, adding that MCSK had contributed to confusion in the creative sector by demanding royalties from users based on interim Tribunal orders later discharged.

In its reply, KECOBO said it had taken steps to comply with Justice Mwita’s orders by submitting proposed music and audio-visual tariffs for the 2025–2028 period to the Cabinet Secretary for Youth Affairs, Creative Economy and Sports for publication.

MCSK, represented by Okubasu and Munene Advocates, maintained that KECOBO erred in rejecting its licence renewal application on grounds that it failed to submit certified copies of annual returns and audited accounts for the preceding five years, as required under the Copyright Regulations, 2020. The society also disputed claims that it failed to provide certified licences and deeds authorising the management of rights.